November 20, 1997
Brian Kempner, Pres.
The New York Observer
54 E. 64th Street
New York, NY 10021
Dear Brian:
I'
m writing to put on the record some of the facts concerning recent events at the New York Observer, and my response thereto.
This is necessary not only for the sake of closure, but because members of the Observer staff have taken to dissembling and, in at least once case, lying outright about the reasons for your termination of my relationship with the paper. Specifically, a number of editors and members of management have been telling callers that there'
s some hope I'
ll be back. And Lauren Ramsby recently told one inquiring reader that the reason my column wasn'
t appearing in the paper was that I "didn'
t want it to go online." That'
s a falsehood, as you well know. I'
d have been happy to have my column go online --
but not at the cost of signing all my electronic rights over to Arthur Carter, the Observer'
s wealthy publisher, as you insisted I do.
I would expect no support from any of the editors there, of course. From the bottom to the top, they'
re all toadies for management, and it'
s notable that from the editor-in-chief on down no one there --
including people I'
ve worked with for years --
has had either the courage or the decency to call me. That'
s a mark of their character, collectively and individually, and not my problem. But it'
s absolutely unacceptable to have them spreading false statements about what happened, and I must demand that you see to it they desist in that practice.
So that you, and the management and staff, at least all know what the correct response to such queries is, here'
s the nutshell version: You demanded that I sign over to the Observer, in perpetuity and for free, all of my electronic rights to all of my writings to appear there after October 15 of this year, and told me I couldn'
t write for the paper any more unless I agreed to make this mandatory donation to Observer publisher Arthur Carter'
s business enterprise. I refused to succumb to that blatant blackmail; you thereupon terminated our relationship. So I'm no longer writing for you. Period.
You know those to be the basic facts of this case; at least be adult enough to have the courage of your convictions and take responsibility for your own actions. Telling anyone anything else --
especially that my departure was in any way voluntary or "my choice" --
adds insult to injury. This was never "in my hands," as you said in your parting words to me; all this was entirely your doing, precipitated by your decisions made without consultation with me, and according to your terms and plans.
Now some background, and the long version:
As you know, I had written a regular critical column on photography for the New York Observer since the late summer of 1988, on a free-lance basis. This nine-year tenure had made me one of the senior writers at the paper. Our business had been conducted without written contract, on a verbal agreement and a handshake, and had proved, by and large, trouble-free.
Then, on October 8th, 1997, without forewarning, you sent me an undated "Writer'
s Agreement" that arrived in my mail on October 10th. It opened with the following statement: "We have been actively promoting The New York Observer by increasing our efforts to make our articles available via other media. In connection with these efforts, all of our freelancers are being required to sign this letter." What followed was a work-for-hire contract transferring to the newspaper all my writer'
s rights -- including copyright -- to anything I published in the Observer. In return for signing away my copyright and the non-online/electronic rights, I would receive a "bonus" of "50% of any sums we receive which are directly attributable to any of your articles." (In practice, what that means is: I'
d get nothing.) There would be no additional compensation for any online/electronic usages. Return of a signed copy of the agreement was demanded by October 15th.
I called my editor, Jay Stowe, who professed to know nothing whatsoever about this and offered no advice or assistance. So I immediately faxed copies of this contract with its ill-mannered cover letter to Dodi Schultz and Dan Carlinsky of the American Society of Journalists and Authors and Naomi Zauderer of the National Writers Union (I'
m a member of both these professional organizations), began putting together a contact list of my freelance colleagues at the Observer, and, as I'
m sure you heard, initiated a one-man campaign to organize their opposition to this. Acting on a suggestion from Naomi and a tip from Dan, I developed a mole at the Observer, who supplied me with the paper'
s current freelance contact list. With Dan'
s help, a phone/fax/e-mail effort to consolidate resistance began. At least half a dozen of the other freelance contributors, including some high-profile figures, seemed inclined not to sign.
At the same time, I replied by fax to you, telling you I wouldn'
t sign the agreement in its then-current form but indicating a willingness to negotiate. You replied, and over the next several days we held several phone discussions on these matters.
I learned from you that the motive behind this rights grab was the Observer'
s signing of a contract with America OnLine to create an Observer online section at AOL; the contract required the Observer to grant AOL perpetual online rights to all material in every issue of the paper, even though only 50% of every issue would be posted at the site -- and even though it would be posted for only a week, with no current plans for archiving, thus killing the online life of all Observer material after a mere seven days.
As I told you, this was a bad deal, thoughtlessly conceived; you agreed, but said there was probably nothing you could do about it now. You did consent, at my suggestion, to go back to AOL and see if they would agree to limited-term exclusivity, but reported to me a few days later that (not surprisingly) they refused to change the terms of the already-signed contract. (I take you at your word concerning the effort to change the deal with AOL, though I have no evidence that, in any of our dealings, you were acting in good faith.)
You told me that, since you had to go after online rights for AOL, you'
d decided to go after all rights. I explained to you the inappropriateness of such a demand. In the course of our discussions, you agreed to drop the work-for-hire clause and the demand for print rights, but remained adamant regarding the transfer of online rights, in perpetuity and free of charge. This may of course have been nothing more than the old bait and switch. You did keep your word regarding work-for-hire and print rights, creating a new contract that dropped those demands. In fact, however, the revised contract you subsequently sent out demanded not just online rights but all electronic rights, in perpetuity and free of charge.
Astonishingly, all of my free-lance colleagues -- including Todd Gitlin, Rex Reed, Hilton Kramer, Molly Haskell, and Nicholas Von Hoffman, each of whom should know better -- signed off on that version, to my great disappointment. Eventually, I found myself the only holdout. You clearly wanted a clean sweep: in our last conversation you urged me to come aboard, even offering me an off-the-record "don'
t ask, don'
t tell" option -- I could do whatever I wanted to with my work electronically, and, unless AOL found out and complained, you wouldn'
t say a word. I found that untenable, and told you so; I offered you instead first online publication rights (which you already enjoyed in print) and limited-term online exclusivity -- extremely generous on my part, I might add, given that Arthur Carter'
s pockets are much deeper than mine. But that wasn'
t good enough. You said I couldn'
t write for the paper unless I signed the agreement you were forcing everyone else to sign. So my days as an Observer columnist ended.
I regret leaving the Observer under those circumstances, of course, and I mourn the loss of that forum for my work, of the readership I'
d built over almost a decade and, not least, of the revenue therefrom (between 10-15% of my annual gross). But I have no doubt that I did the right thing, and I sleep well at night. I own all the rights to all but two of the 1700-plus articles I'
ve published in my 30-year free-lance career, and intend to keep it that way. Those rights constitute my health plan and my retirement fund; moreover, I generate roughly $6500 per year through the licensing of subsidiary rights to my writings. You had no ethical right whatsoever to demand that I give those rights to you; the bullying methods you used to extract them from my colleagues discredits you, and the Observer itself, in the eyes of any true professional.
One final word: Though this battle was lost, it was worth fighting. The principle is simple: my rights are mine -- keep your grubby mitts off them. My colleagues'
decisions to sign -- whether out of carelessness, ignorance, cowardice or desperation -- does not validate your demand or impeach my resistance to it; it merely evidences their lamentable unprofessionalism and incapacity for solidarity in a labor-vs.-management crisis.
All this notwithstanding, you seemed, during our various conversations, to be educable -- seemed, indeed, to have begun to understand better the issues involved, and to see the alternative courses of action available to you and the paper. Every writers'
organization in the country -- the ASJA, the NWU, the Authors Guild, PEN American Center (I belong to all of these) -- has opposed such rights grabs adamantly for years. So it'
s my hope that, when your contract with AOL comes up for renewal, you'
ll negotiate the return of those online rights from AOL to the Observer -- and will then revert those rights, and all the electronic rights, to the free-lance writers from whom you'
ve so rudely stripped them.
That would be the honorable thing to do -- the right course of action for a newspaper that likes to present itself as a supportive base for first-rank writers. I urge you to consider it over the coming years. I won'
t be around to enjoy those benefits, of course; but, as we know, no good deed ever goes unpunished.
Sincerely,
/s/ A. D. Coleman
© Copyright 1997 by A. D. Coleman. All rights reserved. For reprint permissions contact Image/World Syndication Services, POB 040078, Staten Island, NY 10304-0002 USA;T/F (718) 447-3091, imageworld@nearbycafe.com.
